Huff v. Travelers Indem. Co., 3--1173A149

• Citation: 333 N.E.2d 786
• Decision Date: 02 September 1975
• Docket Number: No. 3--1173A149,3--1173A149
• Parties: Margaret HUFF, Plaintiff-Appellant, v. TRAVELERS INDEMNITY COMPANY, Defendant-Appellee.
• Court: Court of Appeals of Indiana

Page 786

333 N.E.2d 786

Margaret HUFF, Plaintiff-Appellant, v. TRAVELERS INDEMNITY COMPANY, Defendant-Appellee.

No. 3--1173A149.

Court of Appeals of Indiana, Third District.

Sept. 2, 1975.

Harry V. Huffman, Linton, Bobby J. Small, Indianapolis, for plaintiff-appellant.

Timothy W. Woods, South Bend, for defendant-appellee.

ON PETITION FOR REHEARING

STATON, Presiding Judge.

Huff has filed her 'Petition for Rehearing' in the above entitled cause alleging that this Court incorrectly decided Issue Two concerning the trial court's grant of Travelers' motion to amend its answer. In our opinion in this case, handed down on May 27, 1975, 328 N.E.2d 430, we stated that Huff failed to object to the motion to amend at the trial level. This is a correct statement, but in the context of the proceedings below, it is perhaps improper to consider this as a decisive factor in our opinion. As Huff points out in her 'Petition for Rehearing,' originally Travelers filed a motion for summary judgment based on affirmative defenses that were not included in Travelers' original answer. Huff then filed a 'motion to strike the motion for summary judgment' on the grounds that such defenses were waived for failure to raise them in the required responsive pleading. Indiana Rules of Procedure, Trial Rule 8(C). Travelers then filed a motion to amend its answer, and the trial court heard argument on Travelers' motion for summary judgment and motion to amend its answer and on Huff's 'motion to strike the motion for summary judgment.' At this hearing, Huff filed an affidavit of Travelers' local agent with whom Huff's deceased husband discussed the claim. This affidavit discloses that the agent did not remember the exact date that Boyd Huff reported the loss although he knew it was no later than March, 1970. This affidavit also discloses that the agent had several conversations with Boyd Huff concerning the loss during 1970 and 1971, but that the agent did not remember the dates of these conversations. The arguments of counsel presented to the trial court on these various motions have not been made a part of the record before us.

As we stated in our original opinion in this case, the policy of this Court and the Supreme Court of Indiana is '. . . to freely allow the amendment of pleadings to bring all matters at issue before the court.' Higgins v. Swygman (1923), 194 Ind. 1, 141 N.E. 788; Oppenheimer v. Craft (1961), 132 Ind.App. 452, 175 N.E.2d 715; Selvia v. Reitmeyer (1973),...